Foreclosure was front page news again today, but not the kind based on subprime loans to people who can’t afford them.

In this case, the foreclosure (almost) happened to ’80s pop star and (alleged) child rapist Michael Jackson.  The property is Jackson’s famous 2,500 acre Neverland Ranch, just outside of Santa Barbara, California.

According to press reports, Jackson owes $24.5 million on Neverland to Financial Title Company, and can’t pay.  The foreclosure auction for ranch the was scheduled for this week. 

Jackson was bailed out today by an investment company that purchased the loan.

We think that the company that bailed out Jackson by purchasing the loan — Colony Capital LLC — made an excellent deal.

The folks who run Colony Capital are exceptionally smart investors, and the Neverland deal fits perfectly with Colony Capital’s philosophy of “cautious contrarianism.” 

As they explain on their website, Colony Capital “employs the entrepreneurial investment strategy which has been successfully executed over the past sixteen years. This strategy is designed to consistently achieve attractive risk-adjusted returns by minimizing competition with other capital sources, while maximizing value through intensive post-acquisition management.”

“Three themes define this strategic approach:

• Cautious Contrarianismduring downturns or secular changes, investing in out-of-favor sectors or markets to exploit capital or product misalignments
• Exploitation of Inefficiencies capitalizing on information advantages to identify micro-market imbalances and secure investments on favorable terms 
• Value-added Management to Optimal Exits creating capital appreciation opportunities through repositioning, restructuring, development, and intensive management.”

Both Jackson and Neverland will no doubt benefit from Colony Capital’s “repositioning, restructuring, development, and intensive management” efforts.

Michael Jackson himself is certainly improperly managed and “out of favor.” 

And no doubt misaligned as well.

For those of you who haven’t been to the Neverland Ranch area, take it from us that it is amazingly beautiful, and is certainly worth far more than Jackson owes, especially with proper management.

We also like this remark from Colony Capital’s Founder, Chairman, and CEO Thomas J. Barrack, Jr.  

In an interview with the French magazine Paris Match, Barrack explained the financial crisis that has followed the bursting of the U.S. housing bubble as follows: “Confidence has disappeared because no one knows any longer who owes what to whom, or what it’s worth. It’s as if toxic waste had been sold in cans with ‘gold’ printed on the lid.”

We wish we’d said that.

Because you are absolutely not allowed to receive (or directly control) any of the proceeds from the transfer of your relinquished property in a 1031 exchange — if you do, you will instantly turn your tax-free Section 1031 exchange into a taxable sale – it is necessary to employ the services of a Qualified Intermediary (also sometimes called a QI or an exchange accomodator) in the 1031 exchange process.

A Qualified Intermediary is the person or business entity that holds the exchange proceeds and acts as a “safe harbor” or barrier between the taxpayer and the proceeds from the transfer of the exchange property, so that these proceeds never come into your actual or constructive possession, but at the same time can be used to obtain new property for you.

The sale proceeds go directly to the Qualified Intermediary, who holds them until they are needed to acquire the replacement property. The Qualified Intermediary then delivers the funds directly to the closing agent.

If the taxpayer meets the requirements of this safe harbor, the IRS will not consider the taxpayer to be in receipt of the funds.

The IRS originally refused to allow deferred exchanges under Section 1031 because the taxpayer received the proceeds from the transfer of the relinquished property before using these proceeds to obtain replacement property.  To the IRS, this receipt of funds in the period between the completion of the exchange made the transactions into a series of sales and purchases rather than a true exchange.

The current law allows the taxpayer a limited period of time after the transfer of relinquished property to identify and obtain title on replacement property, but also reflects the IRS’s concern over the taxpayer’s receipt of the proceeds in the interim by requiring that there be no receipt of cash or other non-qualified property by the taxpayer before both ends of the exchange have been completed.

As a result of this rule, a new professional came into being: the Qualified Intermediary.

Since the taxpayer can not receive the proceeds from the relinquished property until title to the replacement property is obtained, and these same proceeds are used to acquire that replacement property, someone needs to hold on to the funds, acquire the relinquished property from the taxpayer; transfer the relinquished property to another party, acquire the replacement property from another party, and then finally transfer the replacement property to the taxpayer. This is the job of the Qualified Intermediary.

Specifically, the Qualified Intermediary:

• Enters into a written agreement (called an exchange agreement) that documents all important aspects of the exchange.
• Acquires the relinquished property from the taxpayer.
• Transfers the relinquished property to another party.
• Acquires the replacement property from another party.
• Transfers the replacement property to the taxpayer.

The properties are usually deeded directly between the parties, just as in a normal sale transaction. However, in a Section 1031 exchange, unlike an ordinary sale, the taxpayer’s interests in the property purchase and sale contracts are first assigned to the Qualified Intermediary. The Qualified Intermediary then instructs the property owner to deed the property directly to the appropriate party (for the relinquished property, its buyer; for the replacement property, the taxpayer).

Because the proceeds can never come into your actual or constructive possession before the completion of the exchange, there are limitations on who can serve as a Qualified Intermediary in a Section 1031 exchange.

Anyone who is an agent of the taxpayer at the time of the transaction, or has been an agent of the taxpayer within the past two years, is disqualified from being a Qualified Intermediary of the taxpayer.

This prohibition includes anyone who has been the taxpayer’s employee, attorney, accountant, investment banker or broker, real estate broker or agent within the past two years from the date of the transfer of the first of the relinquished properties.

In practical terms, this prohibition eliminates your present lawyer or accountant from serving as your Qualified Intermediary.

However, assuming there are no other disqualifying activities or relationships, you may use a real estate agent who has previously helped to put together a Section 1031 exchange for you, as well as a business entity or person who has performed routine financial, title insurance, escrow, or trust services for you.

Despite the importance of using a Qualified Intermediary in the Section 1031 exchange process, qualified intermediaries are generally not regulated (the single exception is in Nevada).

Remember that the Qualified Intermediary is an actual principal in the exchange transaction. You must assign to the Qualified Intermediary your interest as seller of the relinquished property and your interest as buyer of the replacement property. The Qualified Intermediary will be responsible for holding the proceeds of the transaction in a separate exchange account until the funds are used to obtain the replacement property.

For these reasons, your Qualified Intermediary must be someone you trust to hold your money or land and who has plenty of fidelity bond insurance in place.

You should also take special note of the Qualified Intermediary’s fund management program, asking in whose name the funds are held and where, and what the requirements are for deposits and withdrawals.

In addition, you should also make sure that your Qualified Intermediary is experienced in the Section 1031 exchange process.

Remember that the rules governing the use of the proceeds of the various transactions in Section 1031 exchanges can be complicated, and that a mistake by your Qualified Intermediary can result in you paying thousands of dollars in taxes that could, and should, be avoided.

Remember, too, that it is not the job of the Qualified Intermediary to provide legal or specific tax advice to the exchanger. On these critical matters, you must have expert and trustworthy advice from other professionals.

To contact Melissa J. Fox about serving as a qualified intermediary or for other 1031 exchange services, send an email to strategicfox@gmail.com

As the Congress comes closer to passing legislation to help homeowners facing foreclosure, it is worth taking a look at the opposition to federal foreclosure aid.

Of course, there are those who strictly oppose nearly all forms of government intervention in the economy.  Congressman and presidential candidate Ron Paul and his free market libertarian supporters would be among this group.

Then are those who are opposed to market interventions in general, but will support some government interventions when the stability of the market is at stake.  Most Republicans fit into this group — including Federal Reserve Chairman Ben S. Bernanke.

That’s why it was significant that it was Bernanke who last week made the most convincing argument from a free market perspective for federal aid to homeowners facing foreclosure.

As we noted in an earlier post, Bernanke told an audience at the Columbia Business School that the foreclosure crisis posed the clear and present danger of wreaking economic havoc far beyond the housing market. “High rates of delinquency and foreclosure,” Bernanke said, “can have substantial spillover effects on the housing market, the financial markets, and the broader economy.”

What is at stake, according to Bernanke, is not merely the homes and financial well-being of hundreds of thousands of borrowers, but “the stability of the financial system.”  In this extreme circumstance, even staunch free market advocates, such as Bernanke himself, recognize the need for the government to intervene in the market.

We think, then, that the overwhelming vote in the House of Representives in favor of government intervention to stop the rising tide of foreclosures — legislation that now has the support of many free market Republicans — was rooted at least as much in the economic reality of averting catastrophe as the political expediency of government largess in an election year.

Who then is still opposed to foreclosure aid?

The answer is the apartment owners.

Behind any legislative process is a power struggle of conflicting interests, and very often these interests are economic.  In the case of foreclosure aid, there this now a growing consensus that the foreclosure crisis threatens not merely the borrowers and the lenders, but the economy as a whole and hence the economic interests of almost every sector of the economy.

Except apartment owners.

The National Multi-Housing Council (NMHC) and the National Apartment Association (NAA) have consistently argued that the blame for the foreclosure crisis is what they have called the “misguided” national policy of “home ownership at any cost” and that “People were enticed into houses they could not afford and the rarely spoken truth that there is such a thing as too much homeownership was forgotten.”

The fact is that in sharp contrast to other sectors of the real estate market, the apartment industry has not suffered as a result of the current housing crisis.  Rather, as we’ve noted before, the real estate crisis is forcing the lower end of the single-family housing market back into multi-family rental apartments.  People have to live somewhere – if they can’t afford to live in a house that they own, they will be forced to live in a house that someone else owns, such as multi-family apartment units. As homeowners suffer, apartment owners benefit.

The apartment industry has some very powerful supporters in Congress, including Senator Richard C. Shelby of Alabama, the ranking Republican on the Senate Banking Committee.   Senator Shelby,  who has opposed federal intervention to stop foreclosures, has made millions as a landlord and is the owner of a 124-unit apartment complex in Tuscaloosa called the Yorktown Commons. 

“I want the market to work if it can, and most of the time it will, but not without some pain,”  Senator Shelby has said.

This time, the pain appears to be too great, too wide-spread, and too dangerous, for most other members of Congress, as well as most important players in the economy, to allow it to continue unabated.

Indeed, Shelby has already signaled that he would support a version of the legislation — and that the White House would sign the bill into law.

“I think if we reach a compromise,” Shelby said, “it would be acceptable to the White House because, as a Republican and former chairman of the committee, I’m going to do everything I can, work with the administration, to make sure that the program works for those it’s intended to do and make sure we can afford it as a nation.”

In this crisis, even Senator Shelby has other, larger, and more important economic interests at stake than helping the apartment industry.

In a speech today at the Columbia Business School, Federal Reserve Chairman Ben S. Bernanke issued his strongest warning to date about the danger of the rising tide of home foreclosures sinking the US economy.

“High rates of delinquency and foreclosure,” Bernanke said, “can have substantial spillover effects on the housing market, the financial markets, and the broader economy.”

Bernanke began by detailing some of the nasty numbers of the foreclosure crisis:

• About one quarter of subprime adjustable-rate mortgages are currently 90 days or more delinquent or in foreclosure.
• Foreclosure proceedings were initiated on some 1.5 million U.S. homes during 2007, up 53 percent from 2006.
• The rate of foreclosure starts is likely to be even higher in 2008.
• Delinquency rates have increased in the prime and near-prime segments of the mortgage market.

He then warned that the catastrophic effects of these millions of foreclosure proceedings will extend far beyond the parties to the mortgage:

“It is important to recognize,” Bernanke said, “that the costs of foreclosure may extend well beyond those borne directly by the borrower and the lender.  Clusters of foreclosures can destabilize communities, reduce the property values of nearby homes, and lower municipal tax revenues.  At both the local and national levels, foreclosures add to the stock of homes for sale, increasing downward pressure on home prices in general.” 

“In the current environment, more-rapid declines in house prices may have an adverse impact on the broader economy and, through their effects on the valuation of mortgage-related assets, on the stability of the financial system.”

The real threat that the foreclosure crisis posed to the overall economy, Bernanke said, was “the declines in home values, which reduce homeowners’ equity and may consequently affect their ability or incentive to make the financial sacrifices necessary to stay in their homes.”

The responses to the foreclosure crisis specifically endorsed by Bernanke were nothing new –  working with community groups trying to acquire and restore vacant properties; encouraging lenders and mortgage servicers to work with at-risk borrowers; developing new lending standards to prevent abusive lending practices; working with the Bush administration’s Hope Now Alliance; expanding the use of the Federal Housing Administration (FHA) and government-sponsored enterprises such as Fannie Mae and Freddie Mac to address problems in mortgage markets.

But we think that the tone and perspective of his speech signaled that he was far more ready than the current administration to endorse a wide-ranging federal program to aid homeowners who are in default.

Bernanke came close to saying as much:  “Realistic public and private-sector policies must take into account the fact that traditional foreclosure avoidance strategies may not always work well in the current environment.”

We think by ”traditional foreclosure avoidance strategies” Bernanke meant voluntary procedures undertaken by the financial market itself; the “non-traditional foreclosure avoidance strategies” that Bernanke suggested might be necessary would then be mandatory procedures imposed on the market.

We therefore think that Bernanke’s speech contained a threat to the very financial institutions that the Fed has been so generous toward for the past six months.

So far, lenders have been asked to voluntarily help stem the foreclosure crisis by working with homeowners.  Now it appears that Bernanke may be close to supporting mandatory restraints on foreclosures.

We think Bernanke may have been saying this to the lenders and the leaders of the financial market: “We’ve made billions of cheap dollars available to you, so that you could stay afloat and so that you could make this money available for new borrowing and refinancing to prevent foreclosures.  You have not kept your end of the bargain.  If you don’t move much further along this path soon,  it is in the interest of the US economy overall to force you to do so.”

The lenders and financial institutions haven’t listened to threats from Congressional Democrats like Barney Frank or taken the voluntary actions requested by the Bush administration.

Maybe they’ll listen to today’s warning by Ben Bernanke.

We think they’d better.

The New York Times reported today that the federal taskforce established in January to investigate the mortgage industry is intensifying its efforts. 

The initial purpose of the taskforce, comprised of the Federal Bureau of Investigation and the criminal division of the Internal Revenue Service, as well as federal prosecutors in New York, Los Angeles, Philadelphia, Dallas and Atlanta, was to examine mortgages that were made with little or no documentation of the earnings or assets of the borrowers. 

The investigation is now also focusing on how these loans were bundled into securities.

The taskforce began with an investigation of 14 unnamed mortgage companies; in March, FBI Director Robert Mueller said that the FBI’s probe into potential mortgage fraud had grown to include investigations into 19 separate mortgage companies and involved an estimated 1,300 home mortgage fraud cases.

It is now believed that the investigation has expanded even further.

According to an unnamed official, the expansion of the probe was triggered by the financial industry’s disclosure last week of additional billions of dollars in write-downs from bad mortgage investments.

“This is a look at the mortgage industry across the board,” the official said, “and it has gotten a lot more momentum in recent weeks because of the banks’ earnings shortfalls.”

Stockton, California, has been hit harder by the subprime mortgage crisis than any other US city. 

With a population of just over 280,000, Stockton had 22,000 foreclosure filings in 2007 (1 in 27 households), the highest foreclosure rate of any city in America. 

And as home prices continue to fall, the foreclosure crisis in Stockton is getting worse.

Stockton was an agricultural community, the seat of San Joaquin County, the fifth largest agricultural county in the United States and one of the most productive agricultural regions in the world.  In the past decade, however, Stockton experienced a population boom due to thousands of people settling in the area to escape the higher cost of living in San Francisco and Sacramento. 

Although the median income for a household in Stockton was only $35,453, the per capita income for the city was only $15,405, and 18.9% of families and 23.9% of the population were below the poverty line, subprime loans made houses in Stockton available to thousands who had very little income.

Home construction boomed, house prices soared, and subprime loans kept expanding the bubble further and further. House flippers, speculators and subprime lenders made millions.   

Then, in 2007, the bubble burst.

Few people were more active in profiting from the booming subprime housing market than a young immigrant from Pakistan named Iftikhar Ahmad. 

Between 2003 and 2005, Ahmad made millions of dollars buying and selling more than 100 homes and other properties in the Stockton area.  His company, I & R Investment Properties, LLC, was thriving.  Ahmad deposited at least $8.6 million from escrow closings and was able to send at least $484,000 back home to his native Pakistan.

Ahmad purchased a home at 327 N. Pilgrim Street in Stockton in 1997 for $22,000, then sold and repurchased the same property twice before ultimately selling it a third time in 2005 for $236,000. A house at 2228 E. Stadium Drive in Stockton was bought by Ahmad for $99,000; just 18 months later, he sold the house for $330,000.  In another series of transactions, a house bought and resold several times by Ahmad appreciated in value more than tenfold over an eight-year period.

It sounds like Iftikhar Ahmad was a very smart real estate investor.

The trouble was that Ahmad’s real estate empire was built on fraud.

On October 25, 2007, Ahmad was indicted on federal charges of mail fraud and money laundering, and on April 28, 2008, he pled guilty in federal court to mortgage fraud. 

Ahmad admitted that from July 2003 through October 2005, he participated in a scheme to defraud Long Beach Mortgage, a wholesale lender, in connection with the sale of 10 residential real properties. Between July 2003 and January 2005, Ahmad, through I & R Investment Properties, fraudulently sold 10 residential real properties, obtaining in excess of $1.5 million in loan proceeds.

In each of these transactions, the purchaser financed the property with money borrowed from Long Beach Mortgage.  The scheme involved the use of straw purchasers who lent their name and credit to real estate transactions in which they in fact had no interest. The scheme also involved false statements on loan documents, including those that related to income and occupation, and undisclosed payments by Ahmad of the down payment on behalf of the purchasers.

Many of the mortgages came from subprime lenders and in some cases the buyers used stolen identities. 

And in many of the real estate transactions, the buyers defaulted within a year.

In addition to Ahmad, three other defendants in the scheme have also pled guilty.

John Ngo, 27, of San Ramon, California, a former Senior Loan Coordinator for Long Beach Mortgage, pled guilty to perjury for falsely stating in testimony before the grand jury that he had not received money from a mortgage broker who referred borrowers to Long Beach Mortgage, including borrowers involved in transactions with Ahmad, when in fact he had received more than $100,000 from the mortgage broker.

Manpreet Singh, 24, of Stockton, California, entered a guilty plea to mail fraud for acting as a straw purchaser and borrower in connection with two properties that she purchased from I & R Investments in late 2004 and early 2005. She further admitted that Ahmad paid her in excess of $22,300 for her participation in the scheme.  The properties went into foreclosure within months of the purchase.

Jose Serrano, 44, of Stockton, California, pled guilty to a single count of mail fraud. As part of his plea, Serrano admitted that Ahmad had paid Serrano to recruit straw purchasers, and that Ahmad and Serrano caused several other purchasers to be paid for participating in the scheme.

The case against Iftikhar Ahmad and his co-conspirators was brought by US Attorney McGregor W. Scott, who also indicted mortgage fraud scammer Charles Head. 

Scott said: “This prosecution begins to bring into focus the ways that fraud occurred in the subprime lending market in the Stockton area in the 2003 to 2005 time frame. False representations were made in loan documents; down payments were secretly made by the seller on behalf of borrowers; buyers and recruiters were paid to participate in the scheme; and a loan coordinator working for a wholesale subprime lender was paid by a mortgage broker handling the transactions. The investigation continues.”

Singh’s sentencing date is set for June 9, 2008.  Sentencing for Ahmad, Ngo, and Serrano is set for July 14, 2008.

Billionaire real estate investor Sam Zell has never been shy about expressing his views or going against majority opinion. 

He has embraced the description of himself as a “contrarian” — and not only in regard to investment strategies.  

While just about everyone else has been publicly sympathetic to the many thousands of people who’ve been forced into or close to foreclosure, Zell told an audience last week at the Milken Institute Global Conference in Los Angeles that “What this country needs is a cleansing” in the residential market. “We need to clear out all of those people who should never have been in houses in the first place and who for sure shouldn’t be getting sympathy,” Zell said.

The blame for the current housing slump, according to Zell, isn’t the financial industry’s subprime mortgage practices or overbuilding by contractors.  Rather, the blame belongs to the federal government’s policy of “encouraging homeownership at any cost.” The rise in the U.S. homeownership rate from 63% to 69% during the boom was totally unjustified, Zell said, other than by “the political impetus of, ‘Let’s put more people into homes they can’t afford.’”

Zell, of course, is perhaps the nation’s largest apartment owner. 

As Chairman of Equity Group Investments, Zell controls Equity Residential, the largest publicly traded owner, operator and developer of multifamily housing in the United States with nearly 160,000 apartments in 25 states and the District of Columbia.  And, as we’ve noted in an earlier post, the apartment industry has adamantly opposed federal aid to homeowners facing foreclosure and blamed the housing crisis on what it has called the “misguided” national policy of “home ownership at any cost.”

Zell also went against majority opinion this week when he asserted that the real estate crisis was just about ended, as least for commercial properties, and mortgage-backed securities would be leading the comeback. 

According to Zell, institutional investors are beginning to return to the market for mortgage-backed securities to finance commercial real estate deals and new construction. “I believe the overall market has already started to ease,” Zell said. “Is it in large volumes? No. Is it the first natural step in the evolution? Yes.”

In particular, Zell did not see real damage being done to office properties.  His former company, Equity Office, which he sold to The Blackstone Group in February 2007 for $39 billion, is the largest owner of office buildings in the United States. 

“I’m sure there’s going to be some casualties, particularly in what I would call ex-urban, the glass-block commodity office building,” he said. “I don’t think there is going to be any casualties in Manhattan. I don’t think there’s going to be any casualties in any of the first-class office space around the country. The commercial real estate market is going to do terrific no matter what the economy does, short of a depression.”

On this point, we think he’s probably right.

We wouldn’t want to argue with a real estate investor who has been smart enough to become number 164 on Forbes Magazine’s list of the richest people in the world.

On the other hand, Zell told an audience at the Wharton School last September that the turmoil in the financial markets was only an “emotional reaction” that would soon stabilize.

He was wrong on that one.

And he does own the Cubs.

After the Federal Reserve cut short-term interest rates on Wednesday for the seventh time since September 2007 — lowering the federal funds rate to 2 percent, from 2.25 percent, the lowest level since November 2004 — most analysts observed that the Fed’s move showed that it was more concerned with preventing recession than halting inflation.

We’re not so sure that it is a question of recession verses inflation that’s driving the Fed.

We think that the Fed’s real concern right now is neither inflation nor recession, at least not directly, but the lack of liquidity in the financial markets and the lack of funds that financial institutions are making available to borrowers.

So far, the Fed has pumped more than $400 billion into major U.S. financial institutions in the hope that these institutions would make this money available to borrowers. 

And, so far, they haven’t done so, and liquidity conditions in the credit markets have continued to deteriorate. 

Despite the Fed’s inceasing generosity for the past six months, it has been harder, not easier, for businesses (and individuals) to borrow money.

The Fed is nearing the end of its rate-cutting line.  If the financial spigot does not loosen for borrowers based on the latest cuts, there may be no more that the Fed can do, especially since, with rising fuel and food prices, fears of inflation are already starting to overtake fears of recession, in America’s living rooms as well as its Board rooms.

Two members of the Fed’s Open Market Commitee  — Richard W. Fisher, president of the Dallas Fed, and Charles I. Plosser, president of the Philadelphia Fed — which is charged under federal law with overseeing national monetary policy — voted against lowering the rates this time.  And the criticism of the Fed’s policy of lowering interest rates and providing cheap money for the banks is getting broader, louder and more influential.

The banks and major lending institutions have been waiting for the Fed to cut interest rates as far as it possibly would before they start lending.

That moment has probably arrived.

Now it’s the financial market’s turn to make a move.

The plaintiffs in a class action lawsuit who allege they lost over $80 million that they had placed with Southwest Exchange, Inc. (SWX) and several other 1031 exchange accommodators or qualified intermediaries (QIs) have reached a settlement with one of the defendants, UBS Financial Services, Inc. (UBS).

You can read our earlier post about the lawsuit here.

Under the terms of the settlement, the plaintiffs will receive $23 million from UBS.

The settlement was approved by the court on March 28, 2008, and a notice was sent to the class action plaintiffs on April 2, 2008.

You can read the settlement notice sent by the law firm of Hollister & Brace here.

UBS is one of several defendants who are alleged to have participated with Donald Kay McGahn and and others in a scheme to steal the money that had been entrusted to them to facilitate tax deferred 1031 exchanges.

In addition to UBS, the plaintiffs claim that other major financial firms, including Citigroup and Salomon Smith Barney, participated in the scheme.

A criminal investigation continues.

We wrote a post last month about the likelihood that Herbst Gaming will have to file for Chapter 11 bankruptcy protection from its creditors if it is unable to alter its payment structure for $1.14 billion in debt. 

The company is privately held by brothers Ed, Tim and Troy Herbst, but roughly $371 million of its debt is through publicly traded bonds, which have been negatively affected by the fall-out from the subprime mortgage crisis.

Now there is more terrible news for Terrible Herbst.

On Wednesday, Moody’s Investment Service lowered its bond credit ratings for Herbst Gaming.  The bonds were cut from B3 to Caa2. 

Standard & Poor’s also cut Herbst’s credit rating, from B to CCC. 

In addition, Standard & Poor’s announced that it had placed Herbst Gaming on a “developing watch,” indicating an ongoing reevaluation of the credit quality of Herbst’s debt obligations and the likelihood that its credit rating will be downgraded further.

Bonds rated A (”investment grade”) are judged to be of the highest quality, with minimal credit risk; bonds rated B (”junk bonds”) are considered speculative and are subject to high credit risk; and bonds rated C (also “junk bonds”) are judged to be of poor standing and subject to very high credit risk.

Moody’s said the downgrade took into consideration that Herbst Gaming may not meet its financial obligations in 2008.

“It remains unclear at this time what course of action the lenders may pursue with respect to the event of default,” Moody’s said. “The downgrade acknowledges that the continued volatility in the capital markets along with the high cost of borrowing makes it less likely that a strategic alternative will emerge that does not involve some level of impairment.”

The rating actions came after Herbst Gaming said it had engaged Goldman Sachs for evaluation of strategic and financial alternatives. These alternatives may include a re-capitalisation, refinancing, restructuring or re-organisation of the company’s obligations or a sale of some or all of its businesses.

So far, Herbst Gaming has been unable to negotiate a forbearance agreement with its lenders.

High-end retail complex properties in Kansas and Texas owned by the notorious Edward H. Okun have been put up for sale by a federal bankruptcy trustee.

The properties are the 1.1 million square foot West Oaks Mall in Houston, Texas, and the 587,512 square foot Salina Central Mall in Salina, Kansas.

Okun is alleged to be behind the 1031 exchange scam run by The 1031 Tax Group (1031TG) that defrauded thousands of people out of millions of dollars.

Okun was arrested in Miami, Florida, last month and charged with mail fraud, bulk cash smuggling, false statements, and forfeiture from a scheme to defraud and obtain millions of dollars in client funds held by The 1031 Tax Group. 

Those who were defrauded by Okun’s 1031 Tax Group had hoped to recoup some of their missing funds from Okun’s remaining assets — including the West Oaks Mall and the Salina Central Mall — which were purchased from monies allegedly taken from victims in the 1031 exchange scam.

But the Okun-controlled companies that owned the malls declared Chapter 11 bankruptcy in October. 

It is now unclear whether the proceeds from the sale of the properties would go Okun’s 1031 exchange scam victims.

Both properties apparently have a long line of creditors.

The trustee in the bankruptcy case has hired Keen Consultants, the new real estate division of KPMG Corporate Finance, to market both properties.

You can read our earlier post on Okun and his 1031 exchange scam here.

If the current economic news isn’t scary enough, two respected analysts have come up with Doomsday scenarios that are guaranteed to terrify you.

Here’s one from Mark Gimein, who writes for Slate.com. 

Gimein argues that the subprime crisis is going to spill over into prime loans, greatly expanding both the reach and the consequences of the mortgage debacle and the housing price meltdown.

What’s coming, says Gimein, is a “wave of interest-rate resets in prime loans given to people with good credit that are just as bad, or worse, than we’ve seen in subprime.” 

The effect wil be that many thousands of upscale homeowners will walk away from their homes (and their loans), causing even greater loses for lenders and an even greater fall in housing value.  Another effect: no federal bailout will be able to prevent the total collapse of the housing market.

Here is his reasoning:

“When those dominoes start falling next year [as ARMs reset to higher rates], we may or may not have a subprime bailout plan, and the discussion will start about how to bail out this next tranche of borrowers. The bailout plans on the table now…are reasonably based on the principle of bringing payments down to a point that homeowners can afford.”

“But where prices fall 40 percent to 60 percent, all that goes out the window. Why? Because in expensive locales like San Diego, tens of thousands of people with 100 percent loan-to-value mortgages and option ARMs are living in homes in which they have no equity and on which they owe a lot more than the house is worth.”

“In these places, accepting a government “bailout” that pays them, say, 90 percent of the value of the house to keep from foreclosing will be very tough for lenders, who (if the appraisers don’t fudge the numbers) could be forced to take 36 cents or 45 cents on the dollar for their loans. On the other hand, any plan that makes them pay more if they can afford it is hugely disadvantageous for the borrowers, who have option ARMs about to reset and are much better off handing the keys to bank—and maybe even scooping up the foreclosed house down the street.”

“If you’re…in this position, you might start thinking very seriously about just how attached you are to the wisteria vine snaking over the basketball hoop on your garage. That’s what a lot of other California borrowers will be doing.

“Bet on this: Whatever moral qualms are being urged on borrowers to keep them from walking away from their mortgages, they’ll count for a lot less than the economic reality facing borrowers whose homes have fallen in value by half. Lenders had no reservations about selling borrowers loans with rising payments that would be poisonous in a rising market. Now it seems borrowers have no reservations about leaving those lenders with the risks they begged to take.”

“Consider, too, that, yes, going through a foreclosure kills your credit rating and makes it a lot harder to buy a new house—but as more and more prime borrowers go into foreclosure, it’s perfectly possible that buying a new home a year later will in the near future be as routine and unsurprising as the once inconceivable idea that you can get a whole batch of new credit cards two years after a bankruptcy.”

If that scenario isn’t chilling enough, Yale University economist Robert J. Shiller (author of Irrational Exuberance and co-developer of the Case-Shiller home-price index) has warned that the current housing crisis could exceed that of The Great Depression.

Specifically, Shiller announced that there’s a good chance housing prices will fall further than the 30% drop in the historic depression of the 1930s.

“I think there is a scenario that they could be down substantially more [than in the Depression],” Shiller said in a speech spech given last week at the New Haven Lawn Club and reported in the Wall St. Journal.

Here is Shiller’s reasoning:

Even normal real estate cycles typically take many years to correct.  Because home prices rose about 85% from 1997 to 2006 adjusted for inflation in the biggest national housing boom in U.S. history, the current downturn is likely to go much deeper and last far longer than any other has in the past.

“Basically we’re in uncharted territory,” Shiller said. ” It seems we have developed a speculative culture about housing that never existed on a national basis before.”

As for us, we’re not quite ready to evaluate either Gimein or Shiller as credible prophets of doom. 

We note that, while widely respected, Professor Shiller has also been called the “Dr. Doom” of the U.S. economy.

And we think that both the Pollyannas and the scaremongers have usually been proven wrong.  Economic life usually operates between the poles of perfect success and catastrophe.

But not always. 

If you’ve got something to say to help us all sleep at night, please let us know.

Until then, pleasant dreams…

Today we were banned from the Bankruptcy Forum for “Posting unwanted spam.”

The Bankruptcy Forum has a message board containing news and information about bankruptcy.

We joined the forum a few days ago so that we could see what people were interested in and writing about in regard to bankruptcy and also to tell people about our posts about bankruptcy here at The Fox Real Estate Report.

The post we wrote on the forum included a link to all of the bankruptcy related articles that we’ve published here, and stated that the articles were related to bankruptcy and the mortgage/subprime crisis.  We asked for comments and suggestions about topics, issues, and news we should cover.

Quite a lot of people followed the link and read our posts.

They thought that finding our posts on bankruptcy on the forum was worthwhile.

Now forum members won’t be able to find them there.

That’s bad for them.

Standard & Poor’s announced the results of it’s January S&P/GRA Commercial Real Estate Indices (SPCREX) yesterday, showing that commercial real estate prices across most sectors are either holding steady or still rising despite the subprime crisis and the free fall in the residential housing market.

According to David Blitzer, Managing Director and Chairman of